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Friday, 5 September 2008

The IPKat noticed this article (also noted here and here), which reports that computer game developer Topware Interactive (previously reported by the IPKat in relation to a recent related patents court decision here) have now managed to get a further high court order to force UK ISPs to reveal the identities of thousands of people believed to be involved in internet file sharing.

This development, although apparently a surprise to ISPs, comes as no surprise to the IPKat, who saw no reason why such a move couldn't have been done before, an obvious target for such a move being music file sharing (see previous posts here, here, here, here and here). What the IPKat didn't expect is that the computer games industry would steal a march on the music industry and go ahead with taking action against individual file sharers. He wonders what will happen now, and how many alleged infringers will have the nerve to resist the settlement offer.

An interesting comment made here is that the games involved in this action are allegedly mostly second rate, and didn't sell many copies. Is this a justification for going after people found copying these games, to make poor games pay? Does it matter? The IPKat thought that copyright infringement was the same regardless of the quality of the material, but this view is apparently not universally shared.

It's about a contractual dispute rather than a hardcore IPkat type dispute. However, it is of interest because it is well written, has a witty turn of phrase, has something to say about the modern interpretation of contracts and about the difficulties of drafting. (There may be more but I'm only halfway through).

Is there no reported decision on the handover of the names? Was this not resisted by the ISPs?

We fought such an order and won in Canada at the appellate level on the basis, essentially, of the insufficiency of admissible evidence offered by the record companies. The Court was unwilling to allow a serious intrusion into privacy on the basis of very inadequate, unreliable and mostly hearsay evidence. That was more than four years ago. The record companies have been unable or unwilling to come back with better evidence since then.

"The IPKat thought that copyright infringement was the same regardless of the quality of the material, but this view is apparently not universally shared."

You are thinking as a lawyer; there is more to copyright than law.

For instance, if you follow the American constitutional approach that the *sole* rationale for copyright is to promote the progress of art and science, then there is a very strong argument that it would be contrary to reason *not* to differentiate depending on the quality of material infringed - less worthy art meaning less progress.

*Data Protection* - Should ISPs (or more importantly, should Courts order ISPs to) transfer personal data where the data is only being used in respect of a low value civil claim? The Spanish Promusicae decision shows that Spanish ISPs are more likely to argue their customer's cause in court in this regard than UK ISPs.

*Double Recovery* - if the file-sharer has only downloaded the file, the damages are easy, the lost profit of the rights owner which would have been made if the game was bought legally. However, where the file-sharer also uploads the material, this is where damages become larger. This is a total mess where Bittorrent comes into play as files may not be downloaded unless at least some of the file is offered for upload also. Where damages are awarded for the upload (say, £1000 on the assumption that 200 copies of a £5 game were uploaded), there is a massive potential for the games companies to also recover damages for the game's download, or subsequent upload by the person who downloads, and therefore the potential for double recovery.

Worth? Quality? Who decides this? The judge? Me? An American jury (I would hope not if the case is music related)? My gran? That would mean a thousand years' protection for recordings by Jim Reeves and Slim Whitman.

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